In recent years, the opportunities for content creation and distribution afforded by Web 2.0 have been widely embraced by an increasingly online, computer–literate population. They have also resulted in widespread copyright infringement, which corporate and government regulatory bodies have sought to constrain with legislative changes, court actions, public education campaigns, and technological protection measures. These approaches are informed by theories of perceptual deterrence, and are not working.This paper offers evidence supporting an alternative, process–based approach to understanding online copyright infringement; an approach focussed on factors that encourage voluntary deference, cooperation and compliance, rather than attempting to induce it with threats of punishment.
Contents
Introduction
Reservations and reactions
Behavioural impact
Beyond deterrence
Conclusion
Introduction
In recent years, a convergence of online technologies and services has enabled computer–literate citizens to exert greater control over the flow of media in their lives, and play a more active role in its creation and development. These technologies have been pivotal in the emergence of a “read–write Internet”, which Lawrence Lessig (2005a) contrasts with the consumption–focused, top–down Internet of the late 1990s, and a possible “read–only” Internet — the Internet that appears to be favoured by many large media interests — of the future.
Lasica (2005) similarly refers to the passing of the “couch potato era of force–fed mass media” [1], which he contrasts with a growing participatory, decentralised, bottom–up culture emerging online. Like Lessig (2005a), he is also concerned about the ongoing viability of this participatory culture in the face of a formidable technological and legal opposition.
Technology publisher Tim O’Reilly (2005) views such citizen participation as a fundamental feature of Web 2.0, a growing cluster of online developments that share several important commonalities, and are qualitatively distinguishable from the dominant technologies and services of the retroactively named Web 1.0 era.
Web 2.0 can be a fuzzy concept (see Alexander, 2006; Madden and Fox, 2006) with oftentimes rubbery boundaries, at least part of which is attributable to hype, marketing and the attraction of hip Internet memes to venture capitalists. Nevertheless, O’Reilly’s (2005) identification of a series of systematic differences between the Internet circa 2006/7 and the Internet during the dot–com boom of the late 1990s does appear valid, and has garnered substantial support.
Unlike Web 1.0 technologies, O’Reilly (2005; see also Levy, 2005) argues, Web 2.0 technologies (a) harness/exploit the collective wisdom and effort of their users (i.e., user participation and collaboration add value to the service); (b) trust and respect users, and treat them as co–developers rather than consumers; and, (c) are open to — and encourage — remixing, hacking and sharing, with permissive licensing, open standards and programming languages, freely available application programming interfaces (APIs), and so forth.
Protypical Web 2.0 technologies, services, and activities include Flickr!, Del.icio.us, Digg, Wikipedia, YouTube, MySpace, blogging, podcasting, peer–to–peer file sharing, and the creation of mashups. For the uninitiated, each of these is briefly described in this paper’s Appendix.
These innovations, in addition to what C. Anderson (2005) refers to as the democratisation of the tools of production (e.g., personal computers, software, digital cameras etc.), distribution (e.g., Internet infrastructure), and communication (including “smart search engines and community forums [that] let peers collaborate and exchange ideas in ways that were once available only to insiders or those who took expensive training courses”; [2]) [3], are facilitating an Internet-wide shift away from passive consumption, and towards participation, creation and collaboration. Commensurate with this is a shift in the balance of power, away from established voices, towards the community at large. A move towards what Lasica refers to as the participatory Web, and Gillmor (2004) calls the conversation. A move that Lasica argues is ”throwing the old rules into disarray.” [4]
On Digg and Del.icio.us, users collectively determine (and annotate) what is newsworthy. On Flickr! and YouTube, members decide which photographs and videos should rise to prominence by “favouriting”, linking and commenting. Open APIs and RSS (really simple syndication) allow users to syndicate, customise and remix content in increasingly diverse ways. Free and simple content management (or blogging) tools enable virtually anyone to become a “citizen journalist” (Gillmor, 2004), and to contribute to the conversation. With a personal computer and the BitTorrent peer–to–peer protocol, record label backing is no longer a necessary ingredient in a hit record. DJ Danger Mouse learned this with the Grey Album, which was produced in his home studio in less than three weeks, and downloaded over 1.25 million times between January and April 2004 alone (“An Atlas of the Free,” 2004).
The available data indicates that people are enthusiastically embracing these new technologies, and the opportunities for participation and expression they provide. For example, MySpace has remained ranked within Alexa’s top–10 most trafficked English language Web sites since January 2006. There are currently some 200 million MySpace user accounts/profiles, well over 20 million of which are updated at least monthly (Hempel and Lehman, 2005).
The blogosphere is also expanding rapidly and, until recently, was doubling in size every five to seven months (Sifry, 2006b). By March 2007, Technorati, a real–time blog tracking service, was indexing 70 million blogs, over four million of which were being updated at least weekly. When aggregated, these updates amount to over 58,000 new posts per hour (comScore Media Metrix, 2005; Sifry, 2006a; 2006b; 2007). Pew Internet and American Life data indicates that 19 percent of online teens [5] in the U.S. have created their own blog. Eight percent of adult Internet users have reported doing similar (Lenhart and Fox, 2006; Lenhart and Madden, 2005).
Peer–to–peer file–sharing is a relatively widespread activity, that continues to grow in popularity. During the first half of 2004, CacheLogic estimated that, at any given time, around eight million people were connected to the four main file–sharing networks (Parker, 2004). By the end of 2004, as much as 60 percent of all Internet traffic was peer–to–peer, mainly on the BitTorrent and eDonkey networks (Parker, 2005; Thompson, 2005). More recently collected survey data published by Entertainment Media Research (2007) offers no reason to suppose that the popularity of peer–to–peer has declined during the past three years.
Finally, Pew data collected at the end of 2004 indicated that about 19 percent of online teens in the U.S. (i.e., around four million people), and 18 percent of online adults, had remixed content gathered from other sources into a new creation (Lenhart and Madden, 2005). No doubt, some of this content featured in the videos uploaded to sites like YouTube by 16 million U.S. adults so “others can watch [them]” [6], and in the podcasts downloaded by more than 24 million U.S. adults prior to August 2006 (Madden, 2006).
Many commentators enthuse about a “revolution” resulting from this convergence of technologies. For example, Dan Gillmor quit his job as a columnist for the San Jose Mercury News at the end of 2004 to spearhead a “citizens media” movement based on the idea that “anyone with something to say could use increasingly powerful and decreasingly expensive tools to say it, potentially for a global audience.” [7] Meanwhile, Lessig writes and speaks regularly about how the Internet is used to “create and remix culture.” [8]
Reservations and reactions
While many see the possibilities afforded by Web 2.0 as positive, others have expressed reservations. For example, the ease with which anyone can create a MySpace profile, and then fill it with content of their choosing, has raised a number of privacy and safety concerns, especially when those profiles belong to children (Lenhart and Madden, 2007; Stafford, 2006; Zeller, 2006).
Second, these new tools of mass, pseudo–anonymous expression raise concerns about the ongoing relevance of “the professional”, and what some have been calling the “cult of the amateur” (Carr, 2005). These concerns spread from the blogosphere and into the mainstream media after a series of high–profile incidents involving Wikipedia in late 2005 (Giles, 2005; Johnson, 2006; McHenry, 2005; Seigenthaler, 2005).
Third, and most importantly with respect to this paper, are concerns voiced about the extent to which relatively unregulated online expression and digital creativity result in widespread copyright infringement. As Lessig (2002, 2004b) and others note, innovation and creativity build on the past, and “mass culture provides the building blocks for the stuff we create” [9], today and into the future. This quickly becomes apparent when browsing MySpace (where users decorate their profiles with copied songs, pictures and text), YouTube (where remixing abounds, and one of the most popular genres involves the video’s protagonist dancing to a well–known pop song), or any popular torrent tracker (where the vast majority of material available for download is clearly not being “shared” by individuals legally permitted to do so). Similarly, blogging (which often involves liberal quoting) and mashups (which combine published media into new, derivative creations) also rely heavily on the ctrl–c (copy) and ctrl–v (paste) keyboard shortcuts.
Regardless of whether these uses are considered “fair” (a reasonably well established concept in U.S. law, with no direct parallel in Australia), they have created a substantial degree of tension between the content publishing industries [10] (who regard much of this behaviour as infringement, piracy or theft), and those appropriating, remixing and re–distributing “copyrighted” elements of their cultural milieu. This tension has come to a head in recent years, as tools of (re–)production and distribution have become increasingly available, and the space in which these behaviours are occurring, increasingly public.
Indeed, major players in the content publishing industry regard the “losses” attributable to these copyright infringements as substantial [11], and also claim concern about “a culture of contempt for intellectual property, and for the rights of others generally ... .” [12] To redress these concerns, many in the content industry have sought to markedly increase the control they have over the reproduction and use of all intellectual products (Lessig, 2001, 2004b; Litman, 2001; Stallman, 2002b; Vaidhyanathan, 2001, 2004). This control has been sought through (a) lobbying for legislative changes; (b) court actions; (c) education and propaganda campaigns; and, (d) technological means.
Legislation
Copyright law is complex (the Australian Copyright Act 1968 currently exceeds 600 pages), often counter–intuitive, in a near constant state of flux, and can vary substantially across jurisdictions (Litman, 2001). Litman (e.g., 2000) attributes much of this flux to the success of publishing industry lobby groups who, over the last half century, have been instrumental in shifting the dominant copyright metaphor from that of a bargain, to a set of incentives, to a system of controls.
These shifts have necessitated numerous “improvements” to copyright legislation including, most notably, the U.S. Copyright Term Extension Act 1998, which increased the duration of copyrights — for the 11th time since 1962 — by a further 20 years (to the life of the author plus 70 years), and the U.S. Digital Millennium Copyright Act (DMCA) 1998. The DMCA contains, within a package of measures ostensibly aimed at “strengthening” copyrights, a set of broad provisions prohibiting (a) the act of circumventing technological measures used to control how published works are accessed and used; as well as (b) developing, or distributing tools that can be used to defeat such measures. In practical terms, the DMCA has made it illegal to use or develop hardware or software that circumvents, for example, the digital rights management (DRM) software bundled with many popular audio CDs, so their contents can be copied onto an iPod or equivalent portable audio player, a use which is widely considered to be fair within the United States (Electronic Frontier Foundation [EFF], 2006).
The Australian Copyright Amendment (Digital Agenda) Act 2000, the Copyright Legislation Amendment Act 2004 and the recent Copyright Legislation Amendment Act 2006 have been passed into law to “harmonise” Australian copyright laws with those of the United States, and thus enable the full implementation of the Australia–United States Free Trade Agreement (AUSFTA; Davies, 2004; Varghese, 2004).
Lawsuits
As new legislation has been introduced into law, publishing industry members and representatives have been quick to exploit its provisions. They have also taken advantage of existing laws, and the confusion and uncertainty surrounding their interpretation.
Since A&M Records, et al. v. Napster Inc. was filed in December 1999 (Menn, 2003), numerous lawsuits have been brought against developers and owners of technologies that can be used to trade infringing content, and against organisations alleged to facilitate, or “induce” such trade. Two of the more recent and high-profile actions include Universal Music Australia Pty Ltd., et al. v. Sharman License Holdings Ltd., et al. in the Australian Federal Court, which began with a series of well–publicised raids in February 2004 (Montgomery and Warne, 2004) and appears to have recently ended with a $US115 million settlement in Universal’s favour (Pfanner, 2006); and, Metro–Goldwyn–Mayer Studios Inc., et al. v. Grokster Ltd., et al., which was decided by the U.S. Supreme Court in 2005.
In addition to these high profile cases, dozens more civil and criminal actions have been brought against Web sites allegedly linking to infringing material (for e.g., see Cullen, 2004; Hiestand, 2004; Jardin, 2004a; MPAA, 2004), members of organised warez trading groups (Goldman, 2004; Sullivan, 2004), and individual file–sharers (for e.g., see Borland, 2004; Graham, 2004; “Hollywood Sues,” 2004). Indeed, by mid–2007 the RIAA alone had filed more than 20,000 lawsuits against individual file–sharers (EFF, 2007), and was still filing at a rate of several hundred per month.
Although the majority of these actions have been initiated in the U.S., their impact has been felt worldwide. Peer–to–peer file indexing Web sites have been closed down across Europe (Cullen, 2004; Hiestand, 2004; Jardin, 2004a). Hundreds of citizens in the U.K., Denmark, Austria and elsewhere have been threatened with lawsuits for copyright violation (“UK Music to Sue,” 2004). Even Australians — like Queensland man Stephen Cooper (who was found by Australian Federal Court Justice Brian Tamberlin to have violated Australian copyright laws by hyperlinking to Web sites hosting infringing material; Deare, 2005) — have become embroiled in what many commentators refer to as Hollywood’s “war on piracy” (e.g., Lasica, 2005; Lessig, 2004b).
In addition to filing lawsuits against those involved in the straight reproduction and transmission of copyrighted works, industry groups and individual copyright holders have also targeted individuals making unauthorised derivative works based on their “property”. These derivative works are often referred to as mashups, because they combine (i.e., mash up) audio, visual and textual data from a range of sources into new creative works. One early high–profile mashup that provoked the ire of the music industry was the Grey Album, by Brian Burton (aka DJ Danger Mouse). The Grey Album combines vocals from Jay–Z’s Black Album with music from the Beatles’ White Album, and was the subject of an EMI Records issued cease–and–desist order in February 2004 [13]. The public reaction to EMI’s actions against Burton was strong, and is discussed later in this paper (“An Atlas of the Free,” 2004; Frere–Jones, 2005; Glaister, 2004; Wolk, 2004).
Similarly, legal pressure has been placed on emerging online communities of anime music video (AMV) creators and fans (Lessig, 2005a), artists remixing subway maps (Doctorow, 2006a, 2006c), MMORPG (massively multiplayer online role–playing game) players who have based their online personae on popular comic super–heroes (von Lohmann, 2004a), hobbyists developing extra actions for robotic dogs (EFF, 2003), and even the creators and distributors of animated parodies (Baio, 2006; L. Miller, 2006).
Education
In addition to lobbying for legislative change and launching successive waves of legal actions, members of the content industry have also embarked on a series of aggressive “education” campaigns. Thus far, these campaigns have been less about disseminating information and stimulating critical discourse than they have been about promoting the agendas of large media corporations. Examples include materials provided to schools by organisations like the BSA and the MPAA (see Dean, 2004); booklets recommending the implementation and enforcement of specific ICT usage policies distributed to “corporate leaders” by the MPAA and RIAA (2003); and numerous web campaigns such as the MPAA’s respectcopyrights.org, and the IFPI’s (International Federation of the Phonographic Industry) pro–music.org.
These campaigns have sought not only to modify behaviour directly, but also indirectly through manipulation of the language used to frame issues and shape debate. For example, terms such as “piracy” and “stealing” are used to shape the tone of public discourse about what is, essentially, any use not expressly authorised by “owners” of the copyrighted “property” [14]. As Litman (2000) illustrates:
Piracy used to be about folks who made and sold large numbers of counterfeit copies. Today, the term “piracy” seems to describe any unlicensed activity, especially if the person engaging in it is a male teenager. The content industry calls some things that are unquestionably legal “piracy”. [15] The effects of such framing and metaphor use are well documented in cognitive linguistics (e.g., Lakoff, 2005), and elsewhere (see Dzidic, 2005).
Technology–based strategies
Under the premise of “keeping honest people honest” [16], digital rights management (DRM) is one of several technology–based strategies employed by content publishers to enhance their control over consumers’ use of digital media. Although there are many specific flavours of DRM, they all share the common purpose of preventing (or attempting to prevent) any uses of “protected” media that are beyond those expressly authorised by a rights holder. DRM can make it impossible for consumers to sample, remix or reproduce content, even to the extent permitted by law, and its deployment is criticised on several grounds. These criticisms include:
(a) DRM, coupled with anti–circumvention legislation (as written in the U.S. DMCA 1998 and the Australian Copyright Amendment Act 2006) not only restricts fair/legal use while a work is protected by copyright, but also prevents free access to the work after it has been transferred into the public domain (Lessig, 2004b).
(b) Thus far, DRM has a history of frustrating consumers with compatibility problems, unreasonable restrictions on how legally acquired digital media can be consumed (McBride, 2005), and by exposing them to “serious security and privacy risks” [17] on more than one occasion.
(c) DRM does not prevent determined hackers from copying protected media, nor prevent that media ending up on peer–to–peer networks and Usenet (Biddle, et al., 2002). Indeed, all DRM systems implemented thus far have been quickly circumvented/cracked, and any media for which there is sufficient demand appears on peer–to–peer networks immediately upon its release (if not before), regardless of the DRM used to “protect” it (N. Anderson, 2006; Halderman and Felten, 2006; Seife, 2000; Wolfe, 2007).Other technology–based strategies have involved employing third parties to flood popular peer–to–peer networks with fake files that play anti–piracy messages or bombard the user with popup advertising when opened (Brendt and Dahl, 2004; Needham, 2004b; Wingfield, 2002); and even talk of software that, when installed on an end–user’s computer, will find and delete all infringing media (“Hollywood Sues,” 2004).
Behavioural impact
Each of the approaches described above is based on the assumption that people are rational actors [18] who make choices and select actions aimed primarily at maximising utility. Thus, a course of action is taken when its expected benefits exceed its anticipated costs by a greater margin than that estimated for the next most profitable alternative (Herrnstein, 1990; Putwain and Sammons, 2002). As the anticipated costs of an action increase (or its expected benefits decrease), alternative courses of action become more attractive, and thus more likely to be taken.
For example, if the perceived risks associated with downloading an mp3 file increase when tough new criminal copyright laws are introduced, alternatives should become more probable. Such alternatives may include downloading the song from a licensed online vendor, purchasing the CD, or simply going without. A similar shift should occur when the relative benefits of downloading the mp3 decrease, perhaps due to an increase in disposable income, or a greater understanding of digital audio compression trade–offs.
Within this rational choice paradigm, there has been a considerable focus on deterrence or, more specifically, perceptual deterrence [19]. Perpetual deterrence theory posits an inverse relationship between perceived punishment certainty and severity, and undesired behaviour (Paternoster, 1987). Institutions engaged in social regulation frequently employ deterrence–based strategies when seeking public cooperation/compliance with the rules or laws over which they claim jurisdiction. Tom Tyler and his colleagues (e.g., Huo and Tyler, 2000; Tyler, 1990; 2001b; 2001c; Tyler and Darley, 2000; Tyler and Huo, 2002) cite the pervasiveness of this approach throughout the U.S. criminal justice system (i.e., in policing; in court etc.). It also features heavily in U.S. drug policy (MacCoun, 1993), and the Australian Taxation Office’s (ATO) approach to curbing tax–avoidance behaviour (Murphy, 2002a; 2002b). Furthermore, it is regularly witnessed in a variety of educational (e.g., Crown and Spiller, 1998; Galles, et al., 2003) and occupational settings (Tyler and Blader, 2000).
Despite their popularity, deterrence–based strategies of social regulation are — at least over the longer term — not terribly effective (Tyler and Huo, 2002). For example, after reviewing the available literature, Paternoster (1987) concluded that the effects of punishment certainty and severity on deviant and criminal behaviour are “negligible” [20], at best. He further noted that the deterrence effects observed in cross–sectional, bivariate research are largely spurious, and tend to disappear when studied longitudinally, alongside other factors known to influence deviant and criminal behaviour.
Others have found that deterrence does play a small, yet reliable, role in shaping rule–breaking behaviour, but that its effect is primarily attributable to punishment certainty, and not severity (e.g., Paternoster and Iovanni, 1986). For example, in a review of strategies informing U.S. drug policy, MacCoun (1993) concluded that the effects of perceived severity are generally “unreliable and, when observed, usually quite small” [21], and that perceived certainty accounts for most of the five percent of the variance in marijuana use typically attributable to deterrence factors.
Finally, Tyler’s research often demonstrates how deterrence provides a poor explanation for why people generally obey the law. For example, when basic demographic factors like age and gender were statistically controlled, perceived certainty accounted for just one percent of the variability in the self–reported law–breaking behaviour (such as speeding, littering and shoplifting) of his Chicago sample (Tyler, 1990). This research did not consider perceived severity.
In addition to their limited effectiveness, deterrence-based strategies are resource intensive, and can promote long–term ill will, resentment and mistrust towards both the authorities applying them (Tyler and Huo, 2002), and institutional authorities more generally. These consequences were clearly evident in the zero–tolerance policing environment of New York City throughout the 1990s (Cunneen, 1999; D. Dixon, 1998; Grabosky, 1999), and can similarly be seen in the content industry’s “war against piracy”.
In New York, an additional 10,000 police officers were recruited between 1990 and 1999 to help enforce the City’s new zero–tolerance policies (Cunneen, 1999). This swelling of around 25 percent came at a substantial financial cost to the City. Search, arrest, trial and incarceration rates, each carrying an additional set of costs, also increased sharply during this time, as the police “cracked down” on relatively minor offences, dubbed “quality of life” crimes.
Like zero–tolerance policing, or the seemingly endless “war on drugs” (Humphreys and Rappaport, 1993; U.S. Office of National Drug Control Policy, 2007), launching an intensive, deterrence–based crackdown on piracy is not a cheap endeavour. At a minimum, it requires teams of technology specialists to track the online behaviour of millions of Internet users; hundreds of lawyers to pursue thousands of lawsuits through courts in numerous countries, including the U.S. Supreme Court; and, dozens of political lobbyists, positioned in political centres worldwide, armed with persuasive arguments and deep pockets [22].
Looking beyond financial costs, aggressively pursuing large groups of basically law–abiding people with threats of punishment also carries many less tangible costs. Like the mistrust and animosity towards the NYPD that increased during zero–tolerance (Cunneen, 1999), the content industry has also experienced a considerable public backlash and erosion of goodwill over the last few years.
Numerous activist groups have formed in opposition to industry associations like the RIAA, and have encouraged their memberships to participate in various acts of protest. One visible example is the “stickering” campaign jointly coordinated by Downhill Battle and RIAA Radar. Participating in this particular campaign involves ordering adhesive labels printed with “WARNING! Buying this CD funds lawsuits against children and families” or “WARNING! This record label pays radio stations to keep independent music off the air” from Downhill Battle (or making one’s own), then covertly attaching them to CDs published by RIAA members and retailing in the music departments of major chain stores like Target and Walmart (Downhill Battle, 2003).
The RIAA (along with the MPAA, ARIA, and other industry associations) have also been the subject of a string of critiques that have appeared in online and print publications aimed at a general readership. For example, Australian journalists Steve Cannane (2004) and Peter Martin (2003, 2004), and former industry lawyer Alex Malik (2004, 2005; Needham, 2004a) have all examined the manner in which ARIA reports sales data, arguing that the association deliberately misrepresents the state of the industry through selective reporting and emphasis. Lessig frequently used his monthly column in Wired to discuss aspects of U.S. copyright law which, he argues, is often misused to maintain/increase the profit margins of established interests by stifling innovation and chilling dissent (e.g., Lessig, 2004a, 2004c, 2005b). Furthermore, dozens of articles (e.g., G. Dixon, 2005; Hamilton, 2004; Hellweg, 2004; Jardin, 2004b; Kulash, 2005; Orlowski, 2004), and books (e.g., Fisher, 2004; Lessig, 2001, 2004b; Litman, 2001; Vaidhyanathan, 2001, 2004) have systematically critiqued the content industry’s attitude and approach towards digital copyright and related issues.
On a more proactive note, many writers, musicians, filmmakers and photographers are electing to publish their work under more permissive licences than those preferred by the content industry and governments. Examples of such licences include those developed by the Creative Commons (CC) group (Goetz, 2004; Lessig, 2004b), and the GNU Free Documentation License (Free Software Foundation [FSF], 2000).
The reasons authors cite for using these licenses and/or distributing their work online gratis range from philosophical to deeply pragmatic. For example, Richard Stallman has long advocated the social and scientific benefits derived from transparent sharing and collaboration in the development of software. These values underpin the free software ideology that has driven the development of the GNU/Linux operating systems, as well as many other applications (Stallman, 2002a).
Inspired by Stallman’s work with the FSF, and recognising the need for “a layer of reasonable, flexible copyright in the face of increasingly restrictive default rules,” [23], Lawrence Lessig and colleagues founded CC in 2001 (Lessig, 2004b). CC, and the “some rights reserved” approach to copyright they advocate, is based on the notion that innovation and creativity always build on the past; and when building on the past is too tightly controlled (or prohibited altogether), creativity and innovation suffer. Thus, they promote the importance of maintaining and expanding a rich “cultural commons” that can be freely drawn on in the creation of new works. In the spirit of CC, Lessig published his 2004 book, Free culture, with a CC Attribution–NonCommerical license, and provides links to numerous “remixes” of it on his free–culture.org Web site.
Of course, not every author is guided solely by such lofty principles when opting for “some” rather than “all rights reserved”. Indeed, many have recognised that, in today’s crowded marketplace, getting your work seen/heard by allowing fans to mirror and trade it (and, in some instances, make derivative works based on it) can make good business sense [24]. For example, science fiction writer Cory Doctorow has published a number of books under various CC licenses (e.g., Doctorow, 2003, 2004, 2005a), giving his readers the choice of freely downloading and redistributing the electronic copies available on his Web site, or purchasing hard copies from traditional book vendors. When asked about the motives guiding this decision, he replied, “I didn’t do this because I’m a big–hearted slob ... . I did it because I saw an opportunity to make more money.” [25] Doctorow (2005a) elaborates on this point in his third novel, Somebody comes to town, somebody leaves town:
Why do I do this? ... In the short term, I’m generating more sales of my printed books. Sure, giving away ebooks displaces the occasional sale, when a downloader reads the book and decides not to buy it. But it’s far more common for a reader to download the book, read some or all of it, and decide to buy the print edition ... . Digital and print editions are intensely complimentary, so acquiring one increases your need for the other. I’ve given away more than half a million digital copies of my award–winning first novel, Down and out in the Magic Kingdom, and that sucker has blown through five print editions (yee–HAW!), so I’m not worried that giving away books is hurting my sales. [26] Similar sentiments have been expressed by Wilco, who believe that “giving away” many of their recordings as downloadable mp3s has made a substantial contribution to their current level of success (Jardin, 2004b). Like Doctorow, they argue that allowing people to download and share their music increases, rather than displaces sales. In the words of Wilco’s Jeff Tweedy, “I don’t want potential fans to be blocked because the choice to check out our music becomes a financial decision for them.” [27]
Like the musicians, authors, and activists previously described, ordinary consumers also appear to be thumbing their noses at the content publishing industry. For example, almost two–thirds of the active music downloaders in a February 2004 Pew survey reported that they did not care much about whether the music they download is copyrighted (Rainie, et al., 2004b).
Finally, it appears that the general public continue to embrace file–sharing at unprecedented (or close to unprecedented) levels. Pew researchers have observed a gradual increase in file–sharing since the brief mid–2003 dip (Madden and Rainie, 2005; Rainie, et al., 2004a; 2004b). These findings are consistent with data collected by CacheLogic (Parker, 2004), BigChampagne (Toll, 2004; see also EFF, 2007), BayTSP (Ishikawa, 2004) and Karagiannis, et al. (2004) who reported that “P2P [peer–to–peer] traffic volume has not dropped since 2003” [28] at a 2004 IEEE GLOBECOM conference. It appears that, in the words of Biddle and colleagues (2002), “the darknet–genie will not be put back into the bottle.” [29] Not easily anyway.
Australian Bureau of Statistics (ABS) data indicate that broadband adoption is increasing steadily, and now accounts for around two–thirds of all household Internet subscriptions (ABS, 2007). The amount of data being downloaded is also on the increase. In the three months to March 2007, the average home broadband subscriber downloaded over 7,800 MB (megabytes) of data, compared to just 750 MB per home dial–up subscriber. In total, Australian home Internet users downloaded over 31,200 million MB of data during the March 2007 quarter; more than triple their consumption from just two years prior (ABS, 2005, 2006, 2007).
Although the ABS does not look specifically at how this bandwidth is used, it is reasonable to assume that a fair proportion of it (and probably the majority) is peer–to–peer file–sharing, and that the vast majority of this file–sharing infringes copyrights. At least three factors support this assumption. First, CacheLogic’s widely cited research indicates that at least 50 percent of global Internet traffic is generated by peer–to–peer applications. This figure could be as high as 80 percent in some regions of the world (Parker, 2004). Second, one of the key motivations for adopting broadband is the ability to download large files (e.g., music files) from peer–to–peer networks (Hellweg, 2003; Mulligan, et al., 2003). Third, although file–sharing technologies are both “capable of substantial non–infringing uses” [30], and used in non–infringing ways (e.g., for large Linux distributions, public domain materials, media released under various CC licenses, etc.), they are primarily used in ways that do infringe copyrights. In MGM v. Grokster the plaintiffs alleged that over 70 percent of the files exchanged through peer–to–peer networks infringe on their copyrights, and another 20 percent infringe on copyrights held by others. Circuit Judge Thomas did not dispute this claim [31].
In addition to the costs and consequences outlined above, deterrence–based approaches do not foster self–regulation. That is, any behavioural changes that do result from a “crackdown” are unlikely to last once media attention dies down, and authorities begin shifting their limited resources to other priority areas. This is illustrated in Ross and LaFree’s (1986) review of several large–scale deterrence–based legal interventions targeting drunk driving behaviour. These interventions have typically focussed on increasing the objective — and thus perceived — certainty of punishment by increasing road patrols, introducing random breath testing programs, and implementing “Scandinavian–type laws” based on the measurement of blood alcohol concentration levels. Despite their significant short–term impacts, these interventions rarely have any lasting effects on overall levels of drunk driving.
It seems reasonable to propose that any effects the content industry’s deterrence–based efforts may have on the general public’s behaviour will be similarly short–lived. Indeed, data from several Pew tracking surveys indicate that both music downloading and general file–sharing behaviour did decrease after the RIAA announced, and then began filing lawsuits against individuals accused of infringing copyrights held by its members. However, it was only a matter of months before the prevalence of these behaviours began to rise again (Madden and Rainie, 2005; Rainie, et al., 2004b). This reversal can be attributed to at least two factors: (1) decreasing media attention with each new round of lawsuits (EFF, 2005); and, (2) the increasing realisation amongst Internet users that their chances of being caught and punished for downloading or uploading copyrighted files are very slim.
Internet users’ low estimates of their chances of being caught and punished for copyright infringing behaviours are most likely based on a number of related sources. First, the content industry has publicised each round of lawsuits filed against alleged copyright infringers. Such attempts to manipulate/increase perceived certainty estimates are a double–edged sword, as they also allow people to easily calculate the actual probability of sanctions. For example, in an October 2007 interview the RIAA’s director of communications reported that the association had filed over 26,000 lawsuits against U.S. file–sharers since September 2003 (Stodghill, 2007). Although this figure may initially seem high, it soon pales in comparison to the 15 million U.S. households estimated to have used peer–to–peer technologies to download music files during 2006 (NPD Group, 2007). Indeed, after a few quick calculations, one can conclude that the chances of getting sued for such behaviour are less than 1/5th of one percent (i.e., extremely unlikely). Such a low probability is well below the “reasonably high ... . threshold level of risk” at which researchers typically begin observing the threat of sanctions having some influence on behaviour [32].
Second, the RIAA and MPAA have indicated that they will only pursue “substantial” or “egregious” file–traders, and people/groups facilitating widespread copyright infringement (Graham, 2003b; Hiestand, 2004; “Hollywood Bid,” 2004; Jardin, 2004a; Lyman, 2004; MPAA, 2004; RIAA, 2003; “RIAA: We’ll Spare,” 2003). ARIA have gone even further, indicating (and thus far demonstrating in legal actions) that they will focus their attention on individuals and groups facilitating or deriving some commercial gain from infringement, rather than individual file–traders (N. Miller, 2003; Montgomery, 2005; Needham, 2003; 2004b). Meanwhile, the BPI have indicated that they will only pursue and prosecute individuals engaged in certain types of copyright infringement, but not others (“UK Music Fans,” 2006). Such statements can provide casual users with an even greater sense of invulnerability; of feeling confident that, if they keep their behaviour in check, they will be able to exist “under the radar” indefinitely.
Moderating behaviour to avoid unwanted attention is one way the “experienced” Internet users in West and Burkell’s (2004) research maintained a sense of anonymity online. For these users, this subjective experience of anonymity existed alongside knowledge that true anonymity (i.e., being untraceable) in an online environment is rare, if not completely impossible. This suggests that people make anonymity estimates on a sliding scale, and that one can feel anonymous even when one’s real–life identity can be unearthed with relative ease. As perceived anonymity encourages disinhibited behaviour both off– and online (Joinson, 2003), it can be hypothesised that participants in West and Burkell’s research — and, indeed, Internet users generally — would be most likely to engage in certain “risky” behaviours (such as self-disclosure, information or goods seeking) when feeling most anonymous. Indeed, this does appear to be the case, with a number of researchers indicating a direct relationship between perceived anonymity and a range of disinhibited online behaviours (see Joinson, 1998, 2003). Likewise, it can be suggested that file-sharers will feel most disinhibited when they feel most anonymous, and that they can (and do) enhance and maintain their sense of online anonymity by limiting and modifying their file–trading behaviours in response to the latest news about content industry targets.
The point being articulated is that rational choice theories can provide, at best, an extremely limited account of the online copyright infringing behaviour being observed. This point is perhaps most obvious in the Pew survey data on “former–downloaders”. For example, in their March 2005 memo, Madden and Rainie reported that 11 percent of all Internet users identify themselves as former–downloaders [33]. When asked about why they stopped acquiring files online, around 28 percent indicated it was due to a fear of getting into trouble, or because they had heard about the RIAA lawsuits. In other words, by the beginning of 2005, about three percent of American Internet users had given up downloading and attributed that decision to rational choice/deterrence factors. This is hardly a glowing testament to the efficacy of deterrence–based approaches to large–scale behaviour modification!
Beyond deterrence
Knowing that deterrence–based strategies of social regulation are resource intensive, tend to carry a range of less–tangible costs, and are not particularly effective, researchers have looked elsewhere in an effort to understand why people do and do not comply with the rules and directives of authorities. One such line of research has taken a process–based, rather than outcome–based, approach to social regulation; an approach focused on factors that encourage voluntary deference, cooperation and compliance, rather than attempting to induce compliance with threats of punishment.
Tyler and his colleagues (e.g., Tyler, 1990; Tyler and Huo, 2002) have examined how process factors influence people’s reactions to both voluntary and involuntary contact with legal authorities in the United States. Although most of this research has specifically focussed on the public’s interpersonal experiences with the police and courts system, he does stress that its findings also address “the broader issues involved in shaping people’s behavior in their interactions with all regulatory authorities, because each instance of regulation involves a key question: How can people be motivated to follow the laws and rules that define appropriate conduct?” [emphasis added] [34]
The process–based approach advanced by Tyler comprises three key elements: procedural justice, motive–based trust, and legitimacy. That is, people are more likely to accept a decision or comply with a directive (even one that will result in an unfavourable or unfair outcome) when they feel that the processes involved in arriving at that decision are fair, the decision–maker’s motives are benevolent and trustworthy, and the decision–maker is entitled to make such decisions and ought to be obeyed (Tyler and Huo, 2002).
Procedural justice
Early laboratory–based research by Thibaut and Walker (1975) found that satisfaction with third–party decisions made during dispute–resolution was enhanced by the use of decision–making procedures perceived to be fair. Furthermore, this enhanced satisfaction was achieved “without any increase in the real outcomes available for distribution.” [35] That is, the procedural justice effects observed in Thibaut and Walker’s research were independent of any distributive justice effects (which are also real; people are typically more satisfied with favourable outcomes). These findings have since been widely replicated and extended, and have been used to predict behaviour in both laboratory and field–based studies (Lind and Tyler, 1988).
For example, when Tyler interviewed people living in Oakland and Los Angeles about their most recent personal experience with the police or courts, he found that procedural justice evaluations [36] were considerably stronger predictors of voluntary decision acceptance and satisfaction with the decision maker(s) than outcome fairness and favourability (Tyler and Huo, 2002). These procedural justice effects were comparable across the four types of experiences sampled (i.e., voluntary or involuntary contact with either the police or courts), and were particularly salient when contact with the authorities was involuntary. Furthermore, process considerations dominated participants’ reactions regardless of whether they were White, Black or Hispanic (Huo and Tyler, 2000).
Also looking at the U.S. justice system, Lind, et al. (1993) found that individual and corporate litigants’ decisions about whether to accept or reject an award arrived at through court–ordered arbitration were better predicted by perceived procedural fairness than subjective outcome evaluations and actual/objective outcomes combined. Litigants seeing the arbitration procedure as fair were considerably less likely to exercise their right to reject the award in favour of a full trial.
In the large Milwaukee Domestic Violence Experiment (Paternoster, et al., 1997), spouse abuse suspects arrested in a manner they perceived as procedurally fair (i.e., the police took the time to listen to their side of the story and acted impartially) were no more likely to re–offend than those let off with a warning, and considerably less likely to re–offend than those who saw their treatment as procedurally unfair. That is, the positive procedural justice effects were reflected in the respondents’ behaviour over an extended period of time (Tyler, 2000).
In an industrial/organisational context, Kim and Mauborgne’s (1993) research indicated that subsidiary top managers in multinational corporations were more likely to comply with the strategic decisions of “head office” when they felt those decisions were made in ways they considered procedurally fair. Procedural fairness further influenced compliance indirectly, through its influence on organisational commitment, trust in head office management, and outcome satisfaction. These effects were generally stronger for subsidiaries operating in industries classified as “global.” [37]
Finally, Tyler and Degoey (1995) found that during the 1991 water shortage in California, which they described as a “naturally occurring social dilemma”, procedural justice played a key role in residents’ reported willingness to voluntarily restrict their water use if asked to do so by the Public Utilities Commission. Furthermore, perceived fairness predicted participants’ willingness to empower the Commission with the ongoing authority to manage the water shortage in a range of non–coercive ways. These effects were largest amongst residents reporting a strong sense of pride in their community, and did not diminish as estimates of the current and future severity of the shortage increased.
Motive–based trust
As highlighted by attribution theory, we are motivated to understand why people act as they do (Kelley and Michela, 1980; Michener, et al., 2004). We use this understanding to inform our own behaviour, as well as to predict the future behaviour of others. However, we cannot directly observe the motivations guiding the actions of others, so must infer them based on what we can observe — behaviour. As Tyler and Huo (2002) note, “one central motive attribution that people seek to make is whether the person they are dealing with is ‘trustworthy’” [38], a characteristic they refer to as motive–based trust.
Motive–based trust is distinct from, and more complex than, instrumental trust. Instead of focussing on the predictability of behaviour, it involves inferences about the intentions and motives behind an action, and thus — by extension — about the character or “nature” of the actor. Knowing someone’s character informs us about how they will probably act towards us in the future (Tyler, 1998; Tyler and Huo, 2002). That is, will their actions be benevolent or malevolent? Do they have our best interests at heart? Will they try to do what is “right”? Motive–based trust develops over time and repeated encounters. Furthermore, as it is concerned with whether someone is acting with good intentions, it is not undermined if a mistake or poor decision is made (Tyler and Huo, 2002).
In Tyler and Huo’s (2002) large Californian sample, the influence that evaluations of the trustworthiness of the motives of the decision makers (police officers and judges) had on voluntary acceptance and satisfaction was substantial. Indeed, when motive–based trust was entered into a series of hierarchical multiple regression models before the instrumental factors, the contribution of the latter to both acceptance and satisfaction was trivial. Furthermore, this basic pattern of results was observed regardless of whether the participants’ experiences were voluntary or involuntary, and regardless of whether they were with the police or courts. Finally, Tyler and Huo found that motive–based trust interacted with each of the instrumental factors surveyed. More specifically, its influence on reactions (acceptance and satisfaction) was most prominent when outcomes became more negative, less predictable, and less expected.
In Tyler and Huo’s (2002) research, and especially in Tyler and Degoey’s (1996) studies in family and workplace contexts (also reported in Tyler, 1998), motive–based trust was used to successfully predict reactions to the decisions and directives of authorities with whom the participants had (daily, in the case of Tyler and Degoey) face–to–face contact. Research has shown that motive–based trust also predicts reactions towards decisions made by more distant authorities, with which most people will never have any direct contact. For example, Tyler and Mitchell (1994) interviewed a random sample of U.S. citizens living in the San Francisco Bay area about the Supreme Court and abortion rights. The interviews were conducted after the controversial appointment of Supreme Court Justice Clarence Thomas in late 1991 (for e.g., see Cohn, 1992), but before the court published its 1992 Planned Parenthood of Southern Pennsylvania v. Casey decision [39]. Tyler and Mitchell found that trust in the motives of the Supreme Court justices was a “key predictor” of whether or not respondents were willing to empower the court to make decisions about the scope and nature of abortion rights and, as they argue, “empowerment is of central concern because it represents the willingness [of citizens] to defer to legal authorities.” [40] Further research by Tyler and Degoey indicated that trustworthiness was also a significant predictor of whether or not participants felt obligated to abide by the decisions made by the Supreme Court.
Similarly, when Murphy (2002a) looked at reasons underlying taxpayers’ widespread non–compliance with the ATO’s demands that they “immediately pay back” [41] the tax they had previously avoided by investing in mass–marketed tax–effective schemes, she found that trust in the ATO [42] was a stronger predictor of resistance towards the ATO than outcome favourability and a range of demographic variables. Furthermore, the best predictors of trust were procedural (e.g., whether or not the ATO is neutral, fair, respects citizens rights, treats citizens as trustworthy and consults widely).
Legitimacy
As noted previously, social regulation through coercion is inefficient and not terribly effective, particularly over the longer term. Consequently, social theorists have looked towards factors that foster widespread voluntary compliance. One such factor is perceived legitimacy (Tyler, 2006).
A legitimate authority is one that “ought” to be supported and obeyed; one that is entitled to have its decisions accepted and its rules followed. As such, “the ability to develop and maintain legitimacy is a key feature of effective authorities.” [43] Research indicates that legitimacy is a consequence of procedural justice (Tyler, 1990). That is, “authorities and institutions are viewed as more legitimate and, therefore, their decisions and rules are more willingly accepted when they exercise their authority through procedures that people experience as being fair.” [44]
Research indicates that legitimacy promotes everyday compliance with the law (Tyler, 1990). In other words, individuals who believe they ought to follow the directives of legal authorities (e.g., the police and courts) are more likely to do so. Furthermore, because this compliance is voluntary, it is self–regulated. That is, it is maintained even when the chances of punishment for non–compliance are virtually non–existent (Tyler, 2001a).
Beyond its impact on general law–abidingness, the influence of legitimacy has been observed in a range of circumstances, where it has predicted compliance with, and support for individuals and institutions in both public and private spheres. For example, Sunshine and Tyler (2003) found that higher perceptions of police legitimacy were significantly related to (a) a willingness to cooperate with, and assist the police; and, (b) a willingness to empower the police with the authority to, for example, “do whatever they think is needed to fight crime.” [45]
Legitimacy also plays an important role in organisational settings, as demonstrated by Tyler and Blader (2005), who observed that employees who saw their supervisors and employer as legitimate authorities reported higher levels of compliance with, and greater deference to the rules and policies of their workplace. Similar effects were observed when supervisor ratings (rather than self–reports) of employee compliance and deference were used as outcome variables. In each case, legitimacy was a stronger predictor of employee rule-following than instrumental factors such as the likelihood and extrinsic consequences of detection (Tyler and Blader, 2005).
Finally, in addition to individuals and specific institutions, legitimacy can also be used to understand public support for certain values and behaviours through to entire industries and systems of social and political organisation (Kelman, 2001; D.N. Smith, 1998; Zimmerman and Zeitz, 2002). For example, Kelman describes the rapid delegitimisation of smoking during the last few decades, as scientific and medical evidence about the health risks associated with tobacco use has accumulated. Concurrently, the tobacco industry saw its legitimacy decline sharply, as details of deceptive, manipulative and harmful business practices became public knowledge (Metzler, 2001).
Fairness, trust, legitimacy, and copyright
Just as these process–based factors have been used to understand people’s interactions with a range of regulatory authorities, they may also prove useful when examining the public’s widespread disregard for copyright rules and those seeking their enforcement. Indeed, a body of evidence is accumulating in support of the contention that the copyright industry (which includes content publishers as well as agencies lobbying on their behalf) is behaving in a manner that is not procedurally just, and is not guided by benevolent or trustworthy motives. Furthermore, the industry’s legitimacy has been substantially undermined by this behaviour, along with the agendas it seeks to promote. I will use three specific examples to illustrate.
First, the Sony–BMG CD DRM episode. On 31 October 2005, Mark Russinovich published a blog post that eventually led to the recall of over four million compact discs, and a series of class actions against Sony–BMG in courts across the U.S. and elsewhere (Graham, 2005; Hesseldahl, 2005). In the post, Russinovich (2005b) described how he uncovered a rootkit on one of his computers while performing some routine software testing. As he explained:
Rootkits are cloaking technologies that hide files, Registry keys, and other system objects from diagnostic and security software, and they are usually employed by malware attempting to keep their implementation hidden ... . Given the fact that I’m careful in my surfing habits and only install software from reputable sources I had no idea how I’d picked up a real rootkit ... . [46] Russinovich (2005b) did some investigating, and eventually determined that the rootkit was a part of the DRM software used to protect the content of an audio CD he had recently purchased, and played on the PC. Further investigations by Russinovich revealed that the end user license agreement (EULA) bundled with the CD did not refer to the installation of any software; that the rootkit could not be easily uninstalled; that simply deleting the cloaked files (an obvious step to take in the absence of an uninstaller) would “cripple [the] computer” [47]; and that the software “phoned home” each time the CD was played (Russinovich, 2005a).
As stories about Russinovich’s findings spread across the blogosphere (e.g., Doctorow, 2005b) and into the mainstream press (e.g., Ward, 2005), Sony found itself at the centre of a public relations disaster. The company responded by attempting to downplay the significance of the story [48] and by releasing an uninstaller that (a) decloaked, but did not actually uninstall the DRM software; and, (b) installed a number of additional files, which opened a range of new “serious security holes” [49] on users’ systems. Furthermore, actually accessing the uninstaller involved navigating through a bewildering array of hoops and privacy concerns.
Eventually, Sony acquiesced to public pressure and announced the recall of several million disks (“Sony Recalls,” 2005), but not before numerous anti–virus software vendors classified the DRM software as malware and developed tools for its removal; several class actions were announced; and, ironically, it was revealed that the DRM software itself possibly violated the terms of the Lesser GPL (“DVD Jon’s Code,” 2005). After watching these events unfold, influential blogger Cory Doctorow (2005b) remarked that Sony’s actions “show[ed] jaw–dropping contempt for their customers, for copyright law, for fair trading and for the public interest.” [50]
Second, the Sonny Bono Copyright Term Extension Act (CTEA). In 1998 — for the eleventh time in 40 years — the U.S. Congress extended the terms of copyright for existing works. As a consequence of this decision, works created between 1923 and 1942 will now not pass into the public domain in the United States until at least 2019. It is estimated that less than two percent of these works have any continuing commercial value (Lessig, 2004b).
The 1998 CTEA has been widely criticised on a number of grounds, and is often referred to as the “Mickey Mouse Protection Act” [51], due to its apparent purpose and the manner in which it became law. As Lessig (2004b) explains:
Ten of the thirteen original sponsors of the Act in the House received the maximum contribution from Disney’s political action committee ... . The RIAA and the MPAA are estimated to have spent over $1.5 million lobbying in the 1998 election cycle. They paid out more than $200,000 in campaign donations. Disney is estimated to have contributed more than $800,000 to reelection campaigns in the 1998 cycle. [52] In other words, when you’re member of Congress, “extending copyright terms pays.” [53] Lessig (2004b) goes on to argue that:
There [is] no plausible claim that extending the terms of existing copyrights [does] anything to increase incentives to create. Such extensions [are] nothing more than ‘rent–seeking’. [54] Of course, such rent–seeking not only prevents Mickey and the rest of the two percent from becoming public domain (which, many would argue, was part of the “bargain” under which Walt Disney originally created and published the cartoon), but also the remaining 98 percent of works published around the same time. Works which are not famous, not commercially exploited, and generally not available for public consumption. Works which now cannot be reused, remixed or built upon until — at least — 2019. This, argues Lessig [55], is nothing less than “piracy of the public domain”.
Third, the RIAA lawsuits. By mid–2007 the RIAA had filed more than 20,000 lawsuits against alleged copyright infringing file–sharers, and was still filing at a rate of several hundred per month (EFF, 2007). The indiscriminate manner in which these cases have been filed has raised many eyebrows.
For example, caught up in the very first round of lawsuits was Brianna Lahara, a 12–year–old honour student living with her single mother in NYC public housing, who was forced to settle the case with a public apology and US$2,000 cash [56] (Dean, 2003; “Not–So–Jolly Rogers,” 2003); and a retired school teacher and Macintosh user from Massachusetts, whom the RIAA accused of downloading hard–core rap music with the Windows–only application, Kazaa (Schwartz, 2003). In response to these cases, an RIAA spokesperson reportedly said, “when you fish with a net, you sometimes are going to catch a few dolphin.” [57]
These episodes — when considered alongside tales of off– and online price–fixing (e.g., Federal Trade Commission, 2000; E. Smith, 2006), payola (Leeds and Story, 2005), the works–for–hire amendment (Boehlert, 2000), forced settlements for whatever the accused happens to have in his or her bank account (Graham, 2003a; Harmon, 2003), spoofing (Wingfield, 2002), attempts at suing the dead (“Dead Woman,” 2005), contradictory claims about what is, and is not “fair use” (von Lohmann, 2006), senators suggesting that the computers of file–sharers be remotely destroyed (Kahney, 2003), political candidates developing policy around the requirements of entertainment industry donors (Doctorow, 2006b; Geist, 2006a; 2006b; 2006c), recording industry associations “signing” petitions supporting retrospective copyright term extensions on behalf of deceased musicians (Lessig, 2006) whilst simultaneously lobbying to lower the royalty rates paid to the estates of these (and living) musicians (Block, 2006), and so on — paint a picture of a self–serving industry that (a) does not treat its artists, customers, or the public at large with much respect (or fairness); and, (b) does not appear to have their best interests at heart. Until these issues are addressed, and at least some of industry’s former legitimacy is restored, the infringement will continue, largely unabated.
Conclusion
This paper illustrates how an understanding of the psychology of deterrence, fairness, trust and legitimacy can be used to begin to make sense of the copyright infringing behaviours that, as a consequence of Web 2.0, are becoming increasingly mainstream to an ever increasing proportion of our community. It argues that compliance with copyright regulations is more effectively achieved through efforts focussed on encouraging voluntary deference and cooperation, than by attempting to induce it with threats of punishment that, as a growing body of case and research examples demonstrates, simply does not work.
About the author
Peter Allen is a PhD candidate and Associate Lecturer in the School of Psychology at Curtin University of Technology, Perth, Western Australia. His PhD research aims to develop a grounded theory of the psychology of non–commercial online copyright infringing behaviour. He is a long way from achieving this aim.
E–mail: p [dot] allen [at] curtin [dot] edu [dot] au
Appendix
Examples of Web 2.0–esque technologies, services and activities Name and URL Description Flickr!:
http://flickr.comA photo–sharing service. Users publish photographs to their Flickr! “stream” and annotate them with notes and “tags”, and can invite others to do likewise. Del.icio.us:
http://del.icio.usThe first of several “social bookmarking” services (Norton, 2006). Users maintain a collection of bookmarks pointing to places of interest on the Web. Tagging enables categorisation and organisation. Digg:
http://digg.comOne of several popular, user–driven news/link aggregation Web sites. Wikipedia:
http://wikipedia.orgA reference site to which anyone can contribute. Contributions may be in the form of adding content, editing content, or engaging in discussions about quality of information in Wikipedia. YouTube:
http://youtube.comA video sharing service. Users upload video clips, tag them, and invite others to offer comments and feedback. MySpace:
http://myspace.comPopular “social networking” service. Users establish a MySpace profile, which they can customise or “pimp” (Reiss, 2006) in numerous ways. The typical user will incorporate photographs, music, video clips, and a blog into their profile, and will provide a forum where viewers can leave comments. Blogging “Blogs” (or web–logs) can be distinguished from static Web sites in several ways. They are typically updated with much greater frequency; take the form of set of “posts” presented in reverse chronological order; and, are maintained with content management systems that enable rapid updating without an intimate knowledge of HTML (hypertext markup language). Other common blog features include tools that enable readers to comments on individual posts; the use of stable URLs (uniform resource locators, referred to as “permalinks”), which allow for ease of citation; “trackback” facilities that show where and when these citations are occurring; and, RSS feeds that visitors can subscribe to (Drezner and Farrell, 2006; Lenhart and Fox, 2006; O’Reilly, 2005). Podcasting An audio or video file made available via RSS. Like a blog feed, Internet users can also subscribe to podcast feeds with a range of applications (Rainie and Madden, 2005). Peer–to–peer file–sharing A peer-–to–peer protocol harnesses the collective bandwidth of its user base to distribute files quickly and cheaply. In a peer–to–peer network, everyone is both a client and a server (Izal, et al., 2004; O’Reilly, 2005; Thompson, 2005). Mashups Creating a mashup (or remix) involves combining previously published audio and visual media into a new derivative work.
Notes
1. Lasica, 2005, p. 12.
2. Lasica, 2005, p. 13.
3. See also, “the demystification of the process of authorship and creativity”; Rojas, 2002, § 5.
4. Lasica, 2005, p. 2.
5. At the time this statistic was reported, 87 percent of the U.S. teenage population was defined as “online” (Lenhart and Madden, 2005). This figure has since increased to 93 percent (Lenhart and Madden, 2007).
6. Madden, 2007, p. 3.
7. Gillmor, 2006, § 1.
8. “The Second Life,” 2006, § 14.
9. Lasica, 2005, p. 14.
10. The term content publishing industry is used to refer to the major commercial interests in international publishing, as represented by trade associations like the Motion Picture Association (MPA) and the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA), the British Phonographic Industry (BPI), the Australian Record Industry Association (ARIA), the Business Software Alliance (BSA), the International Publishers Association (IPA), and the Association of American Publishers (AAP).
11. E.g., up to “several billion dollars annually”, according to the brief filed by motion picture studio and recording company petitioners for MGM v Grokster, before the U.S. Supreme Court, No. 04–480, 2005, p. 13.
12. Ibid.
13. EMI hold the copyrights to the White Album.
14. For example, in testimony before the Duluth Division of the U.S. District Court in Capitol Records, et al. v. Jammie Thomas (Case No.: 06cv1497–MJD/RLE) Jennifer Pariser, Senior Council for Sony BMG, repeatedly described the act of making a single reproduction of a legally purchased audio track as “stealing” (Bangeman, 2007).
15. Litman, 2000, pp. 7–8.
16. von Lohmann, 2004b, p. 5.
17. Halderman and Felten, 2006, p. 1.
18. Rationality is the subject of considerable debate. Even if people do in fact choose behaviours that maximise their self–interest, they make such choices in a context of imperfect information, and with often limited time at their disposal (Putwain and Sammons, 2002).
19. The term perceptual deterrence emphasises how perceived risks and rewards are much better predictors of behaviour than actual/objective risks and rewards (Grasmick and Green, 1980; Paternoster, 1987).
20. Paternoster, 1987, p. 186.
21. MacCoun, 1993, p. 501.
22. For example, data collated by the Center for Responsive Politics indicates that candidates in U.S. federal elections have received campaign donations of over US$200 million from the entertainment industry since 1990.
23. Creative Commons, § 3.
24. But, see McDonald (2006), who argues that “as they stand, the [CC] licenses are generally likely to undermine, rather than enhance a creator’s ability to operate professionally” (p. 223).
25. Raskin, 2004, § 12.
26. Doctorow, 2005a, p. 1.
27. Jardin, 2004b, § 29.
28. Karagiannis, et al., 2004, p. 1.
29. Biddle, et al., 2002, p. 1.
30. To quote Circuit Judge Thomas’ written opinion for MGM v. Grokster in the U.S. Court of Appeals for the Ninth Circuit, 2004, 19 August, p. 11737.
31. Neither did U.S. Supreme Court Justice Souter who, in that Court’s opinion on MGM v. Grokster (No. 04–480, 2005, 29 June, p. 5), wrote that “the vast majority of users’ downloads [on the FastTrack and Gnutella peer–to–peer networks] are acts of infringement”, and that “the probable scope of [this] copyright infringement is staggering”.
32. Tyler, 1997, p. 222.
33. The Pew surveys do not distinguish between infringing and non–infringing downloading behaviour.
34. Tyler and Huo, 2002, p. 8.
35. Lind and Tyler, 1988, p. 29.
36. Specifically, perceived quality and fairness of treatment, and perceived quality and fairness of decision–making.
37. See Kim and Mauborgne, 1993, pp. 504–506.
38. Tyler and Huo, 2002, p. 59.
39. The decision essentially reaffirmed Roe v. Wade, the 1973 U.S. Supreme Court ruling which provides “constitutional protection for limited abortion rights” (Tyler and Mitchell, 1994, p. 705).
40. Tyler and Mitchell, 1994, p. 787.
41. Murphy, 2002a, p. 3.
42. Indexed by items such as “the Tax Office has acted in the interests of all Australians” and “the Tax Office is open and honest in its dealings with citizens” (Murphy, 2002a).
43. Tyler, 2001a, p. 419.
44. Tyler, 2006, p. 379.
45. Sunshine and Tyler, 2003, p. 542.
46. Russinovich, 2005b, § 1–2.
47. Russinovich, 2005b, § 21.
48. In an interview soon after the news broke, Sony’s Global Digital Business President Thomas Hesse remarked that “most people, I think, don’t even know what a rootkit is, so why should they care about it?” (Mook, 2005, § 1).
49. Halderman and Felten, 2006, p. 2.
50. Doctorow, 2005b, § 1.
51. Much like the previous 10 copyright extensions granted by the U.S. Congress, the 1998 CTEA “saved” Mickey Mouse from the public domain. Ironically, Steamboat Willie — the first Mickey Mouse cartoon — borrowed heavily from Buster Keaton’s Steamboat Bill, and could probably not have been made if today’s copyright laws had existed in the 1920s (Lessig, 2002).
52. Lessig, 2004b, p. 218.
53. Lessig, 2004b, p. 216.
54. Lessig, 2004b, p. 232.
55. Lessig, 2004b, p. 220.
56. This case, and many like it, seems particularly galling in light of recent admissions by Edgar Bronfman (CEO of the Warner Music Group, one of the plaintiffs in the lawsuit against Lahara) that his own children received nothing more than a lecture from their father for engaging in essentially identical behaviour (MacMillan, 2006).
57. Roddy, 2003, § 13.
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Editorial history
Paper received 16 December 2007; accepted 19 August 2008.
This paper is licensed under a Creative Commons Attribution–Noncommercial–No Derivative Works 3.0 Unported License.Rip, mix, burn ... sue ... ad infinitum: The effects of deterrence vs. voluntary cooperation on non–commercial online copyright infringing behaviour
by Peter J. Allen
First Monday, Volume 13 Number 9 - 1 September 2008
https://firstmonday.org/ojs/index.php/fm/article/download/2073/2025
